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55 F.

3d 114

The VILLAGE OF SYLVAN BEACH, NEW YORK, PlaintiffAppellee,


v.
The TRAVELERS INDEMNITY COMPANY, and The
Travelers Insurance
Company, Defendants-Appellants.
No. 1402, Docket 94-7869.

United States Court of Appeals,


Second Circuit.
Argued March 21, 1995.
Decided May 24, 1995.

Robert J. Smith, Syracuse, NY, (Costello, Cooney & Fearon), for


defendants-appellants.
Carl J. Cochi, Utica, NY, for plaintiff-appellee.
Before: OAKES, KEARSE, and LEVAL, Circuit Judges.
LEVAL, Circuit Judge:

Defendants Travelers Insurance Company and Travelers Indemnity Company


("Travelers") appeal from Judge Scullin's grant of partial summary judgment to
the insured plaintiff, the Village of Sylvan Beach, New York (the "Village"),
declaring that Travelers must furnish a defense to the Village against a
wrongful death claim.

Background
2

At the Village, there is a beach on the shore of Oneida Lake. On August 8,


1992, Tammy Joslyn, a child, drowned at the beach 100-200 yards offshore.
John and Margaret Joslyn, her parents, brought a wrongful death suit against
the Village in state courts. The Village then brought this action to compel
Travelers to defend and indemnify the Village.

Both Travelers and the Village moved for summary judgment. Travelers
contended that the Village's commercial general liability policy expressly
excluded coverage of the risk represented by the Joslyn wrongful death action.
The Village claimed the risk came within the coverage of the policy or that, at
worst, the exclusion was ambiguous, thus requiring the insurer to defend,
leaving the issue of indemnification to be settled after the Village's liability is
established.

The district court granted partial summary judgment to the Village. The court
held that the exclusion clause was ambiguous, so that Travelers was obligated
to defend the Village in the underlying lawsuit, leaving open the question of its
duty to indemnify. The court noted that because an insurer's duty to defend is
broader than its duty to indemnify, it need not find that the insurer had the duty
to indemnify as a prerequisite to a final decision on its duty to defend.

We find that the exclusion clause of the policy unambiguously excluded the
risk represented by the Joslyn suit; we therefore reverse the judgment of the
district court, and direct the entry of summary judgment in favor of Travelers.

Discussion
6

In New York State, an insurance contract is interpreted to give effect to the


intent of the parties as expressed in the clear language of the contract. See
Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 135 (2d Cir.1986);
Ogden Corp. v. Travelers Indem. Co., 681 F.Supp. 169, 173 (S.D.N.Y.1988). If
the provisions are clear and unambiguous, courts are to enforce them as written.
See Maurice Goldman & Sons, Inc. v. Hanover Ins. Co., 80 N.Y.2d 986, 592
N.Y.S.2d 645, 646, 607 N.E.2d 792, 793 (1992). However, if the policy
language is ambiguous, particularly the language of an exclusion provision, the
ambiguity must be interpreted in favor of the insured. See Marino v. N.Y. Tel.
Co., 944 F.2d 109, 112 (2d Cir.1991). Furthermore, where the policy includes
an obligation to defend, if there is a doubt as to whether the claim comes within
the insurer's duty to indemnify, the insurer is generally required to furnish a
defense, leaving the issue of indemnification to be settled after establishment of
the insured's liability. See Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304,
486 N.Y.S.2d 873, 875-76, 476 N.E.2d 272, 274-75 (1984). The insurer
generally bears the burden of proving that the claim falls within the scope of an
exclusion. See Maurice Goldman, 80 N.Y.2d 986, 592 N.Y.S.2d at 646, 607
N.E.2d at 793. "To negate coverage by virtue of an exclusion, an insurer must
establish that the exclusion is stated in clear and unmistakable language, is
subject to no other reasonable interpretation, and applies in the particular case."
Sea Ins. Co., Ltd. v. Westchester Fire Ins. Co., 51 F.3d 22, 26 (2d Cir.1995)

(internal quotation omitted).


7

The question for this court is whether the exclusion provision of the policy
clearly and unmistakably excludes the liability asserted against the Village in
the Joslyn complaint. We find that it does. The Joslyn complaint alleges, inter
alia, that the Village operated a bathing beach, that it did so negligently by
failing to designate safe swimming areas or furnish lifeguards or safety
equipment, and that as the result of this negligence, the Joslyn child was
drowned while using the bathing beach.1

The exclusion provision in the Village's policy is headed "EXCLUSION--ALL


HAZARDS IN CONNECTION WITH DESIGNATED PREMISES" and
provides:

9
This
insurance does not apply to "bodily injury," ... [or] "personal injury" ... arising
out of:
10The ownership, maintenance or use of the premises shown in the Schedule or any
1.
property located on these premises;
11Operations on those premises or elsewhere which are necessary or incidental to
2.
the ownership, maintenance or use of those premises....
12

The designated premises are "Bathing beach Sylvan Beach, New York."

13

We conclude that the terms of this provision clearly and unmistakably exclude
the type of injury alleged in the Joslyn action. While the ownership of Sylvan
Beach is an issue in dispute, even if the Village did not have "ownership," it
exercised "maintenance or use" of the beach. The Village systematically
cleaned and maintained the beach; its budget included a line item for beach
expenses; it had a Beachfront Commission; it enacted laws to regulate animals,
vehicles and water equipment on the beach; and it owned and operated a
parking lot, rest rooms, and picnic area adjacent to the beach. These activities
relate to the Village's maintenance and use of the beach. The allegations of the
Joslyn complaint are within the scope of the Village's "use of the [beach]
premises ... [or its] [o]perations on those premises or elsewhere ... incidental to
the ... use of those premises."

14

The Village argues that the term "bathing beach" might denote the sand, not the
water adjacent to the sand, and particularly not 100-200 yards offshore; it
therefore contends the term is at least ambiguous, if not clear in its failure to
exclude a drowning so far off the beach. In view of the provisions of the

exclusion clause quoted above, we find it immaterial whether the beach extends
to waters 200 yards offshore. Coverage is excluded if the drowning arose out of
the use of the beach, or operations (on the beach or elsewhere) that are
incidental to the use of the beach. This is what the Joslyn complaint alleges. We
conclude that Travelers has met its burden of "demonstrating that the
allegations of the complaint cast that pleading solely and entirely within the
policy exclusions, and ... are subject to no other interpretation." Technicon
Elecs. Corp. v. Am. Home Assurance Co., 74 N.Y.2d 66, 544 N.Y.S.2d 531,
533, 542 N.E.2d 1048, 1050 (1989) (internal quotation omitted). Travelers had
no duty to defend the Village in the underlying lawsuit.
15

Because the underlying tort claims fall plainly within the exclusion provision,
Travelers has no duty to defend or indemnify the Village on those claims. See,
e.g., Logan's Silo Sales & Serv., Inc. v. Nationwide Mut. Fire Ins. Co., 185
A.D.2d 651, 585 N.Y.S.2d 646, 647 (4th Dep't 1992). The judgment is
reversed; the district court is directed to enter judgment in favor of Travelers.

The Joslyns' complaint alleges that the Village:


did continue the operation and maintenance of said public park and public
bathing resort, well knowing that no warnings were being given to the public of
the dangers ... and well knowing that no life guards or life saving apparatus
were being furnished or supplied ... [or] floatation devices or ropes ... to denote
designated swimming area ... [or] floating buoys or other devices to indicate the
depth of the waters....
It further asserts that:
Plaintiff's intestate ... paid to ... the Defendant Village the required admission
fee ... for the use of the bathing facilities so furnished by the Defendant Village
... [and that] while the Plaintiff's intestate was availing herself of the use of the
said bathing facilities so furnished by the Defendants, and while bathing in the
usual and customary manner, the Plaintiff's intestate was drowned....

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